Judge: Laura A. Seigle, Case: 20STCV13372, Date: 2023-03-20 Tentative Ruling

Case Number: 20STCV13372    Hearing Date: March 20, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO CONTINUE TRIAL

            Plaintiffs filed this case on April 3, 2020.  On December 1, 2021, the court set a trial date of January 23, 2023.  On January 23, 2023, the court continued the trial date to January 27, 2023 because the parties had not filed a proper joint exhibit list and joint witness list.  On January 27, 2023, the court deemed the case ready for trial, and the case was assigned to a trial judge.  Plaintiff exercised a peremptory challenge against that judge.  Because there was no other trial court available, the court continued the trial to February 1, 2023.  On February 1, 2023, the case was assigned to another trial judge.  Defendant exercised a peremptory challenge to that judge.  Because no other trial court was available, the court continued the trial to February 8, 2023.  On February 8, 2023, there was no available trial court, so the court continued the trial to February 10, 2023.  On February 10, 2023 there was no trial court, so the court continued the trial to February 16, 2023.

            On February 15, 2023, Defendant Dunn-Edwards filed an ex parte application asking for a 90-day trial continuance because defense witness Robert Wendoll was sick.  This was the first time Defendant had stated Wendoll was sick.  The ex parte application stated the witness had been similarly ill in late December.  Because the witness had recovered from his illness in December to be ready for trial in late January 2023, the court determined a 30-day continuance was appropriate so that the witness could again recover and continued the trial to March 20, 2023.  The court stated the Defendant was to prepare another witness in the event Wendoll did not recover or relapsed again.

            On February 22, 2023, Defendant filed a motion to continue the trial date.  Defendant states that Wendoll got pneumonia in December 2022, never recovered and is still sick.  Defendant states they need a trial continuance because he is still has pneumonia and is on oxygen.  Defendant states that the court’s ruling on the ex parte application was incorrect in stating that Wendoll recovered after getting sick in December 2022.

            Defendant’s motion is problematic for at least two reasons.  First, on January 27, 2023, the court deemed the case ready for trial without any objection from Defendant and without any mention from Defendant that Wendoll was too sick to participate in a trial.  Likewise on February 1 when Defendant exercised a peremptory challenge to a trial judge, Defendant did not say it could not go to trial because Wendoll was too sick.  Likewise on February 8, when the parties appeared for trial, Defendant did not say Wendoll was too sick for the trial to proceed.  Rather, on each of these dates, Defendant was prepared to proceed with the trial. 

            Second, in ruling on Defendant’s February 15, 2023 ex parte application, the court notified Defendant that it needed to prepare another witness in the event Wendoll did not recover.  The witness apparently is elderly.  According to Defendant, he has had pneumonia for four months, requires oxygen, and cannot leave his house.  There is no indication when or if he will recover.  Defendant provides no current information from a doctor about whether he will ever recover or ever be able to leave his house.  Defendant has had a month to find and prepare another witness.

            The request for a continuance is denied.

            The moving party is to give notice.